Perceptual computing: the next big thing

Perceptual computing is a new technique in the already crowded technology area. Perceptual computing may reinvent the way we interact with our computing devices, making it more natural, intuitive and immersive. The computing devices will be able to perceive user actions through new capabilities including close range hand gestures, finger articulation, speech recognition, face tracking, augmented reality experiences, and more.

Perceptual computing is an efficient alternative to  the mouse and keyboard and controls computers with gesture, eye motions, and voice.

Minority-Report-Video-Wall-Hand-Gestures

Let’s look at the architecture of the Perceptual computer to understand how perceptual computing is implemented.

Perceptual Computer consists of three components: encoder, computing with words (CWW) engine and decoder. Perceptions such as words are provided as an input in order to activate the perceptual computer and  the words are presented as perceptual computer output along with the data, thereby interacting with the user using vocabulary.

The encoder transforms the words into fuzzy sets and leads to a codebook with their fuzzy set models. The output of the encoder activates a computing with words (CWW) engine whose output is other fuzzy sets which are then mapped by the decoder into a recommendation with supporting data. The recommendation may be in the form of a word, group of similar words, rank or class.

The perceptual computer establishes vocabulary for an application and collects data in certain intervals from various sources for all the words in the vocabulary. The perceptual computer maps the collected data into words resulting in the codebook for the application and completes the functioning of the encoder in the perceptual computer. The CWW engine maps the fuzzy sets into one or more fuzzy sets. The CWW engine may consist of If-Then rules and Linguistic Weighted Averages. If there is a CWW engine for the application, then perceptual computer uses its available mathematics to compute its output. Otherwise, the perceptual computer develops mathematics for the new kind of the CWW engine. The new CWW engine should be constrained such that its output resembles the words in the codebook for the application.

Further, the perceptual computer maps the fuzzy set output from the CWW engine into a recommendation at the output of the decoder. If the recommendation is a word, rank or class, then the perceptual computer uses existing mathematical logic for mapping. Otherwise, the perceptual computer develops a new mathematical logic for the new kind of decoder.

Intel is betting big on perceptual computing and has announced devices which work on the technique. Though perceptual computing is still in development stage, it presents innovative way of using your imagination and shows us the vision for the future of computing.

 

Author, Chandrasekhar is Manager, Patent and Trademark Agent at IP Astra

Getting ready for Start-up India

By now, everyone must be aware that Government of India has kick-started a #startupindia campaign to boost start-up businesses in India. With rest of the country, I’m also pleased to see the policy taking its shape.

Apart from tax benefits announced for the start-ups, intellectual property rights too has taken importance cognizance this time around. The Govt. of India has announced 80% reduction in filing fees for start-ups. Following the announcement, Indian patent office (IPO) released a scheme for facilitating Start-Ups intellectual property protection (SIPP).

First of all, I’m happy that the IPO has taken an initiative to help start-ups to file patents, trademark and design for their innovations. In the announcement, the IPO has clarified the definition of start-up. For the purpose, start-up means an entity, incorporated or registered in India not prior to five years with annual turnover not exceeding INR 25 crores in any preceding financial year. So, not only the new start-ups will be covered under the scheme, even the start-ups that began their business within the span of 5 years are eligible for reduction under the scheme. Further, the IPO has announced that they will empanel facilitators, such as patent agents, lawyers, trademark agents to help the start-ups in drafting and filing patents and trademarks for them. One surprising factor in the announcement is that the facilitator will be paid by the Central Government for their services through IPO. So, the start-ups will only have to pay the Govt. fee for filing the application and the professional fees for the facilitators will be borne by the Central Government. The fees for the professional services offered by the facilitators are fixed at INR 10,000 for filing of patent and INR 5000 for filing of Trademark. On personal note, I wonder how many patent agents will be willing to work at that cost.

Nevertheless, in the larger interest of people, the scheme announced by the IPO is very good for India and I welcome the initiatives by PM Narendra Modi and IPO to boost start-up businesses in India.

Author, Chandrasekhar is Manager and Patent Agent at IP Astra

Insight on Patenting Open Source Software

Nowadays, many individual inventor(s) and small enterprises approach us with a query – whether their innovation in an open source software can be a subject matter for a patent. If yes, then how? Primarily, the inventors would like to understand how much of their contribution in the underlying software is protected, as much of the software is built on existing program code developed by the open source community. To answer the questions, I thought it is best to discuss in a post to provide details to the inventors in general. In this post, I intend to discuss only patents and not copyright.

As known, open-source software refers to a software for which the underlying programming code is made freely available for use, reading the code, changing it or developing further versions of the software, including adding amendments to it. Open source software is often used as a non-proprietary software, such as Android, Linux, Ubuntu, Mozilla, GNU, etc., in which different versions of the software is further distributed and licenced at no additional cost. In other words, open source software is made available to the general public with relaxed or no intellectual property restraints that would keep another person from customizing or building upon the source code to make use of the software for their particular use. On the other hand, proprietary software, such as iOS, Windows, MacAfee, maintains the exclusive rights in terms of copyright and/or patents. The exclusive rights allow the owners of the proprietary software to refuse access to the source code by third parties for the purpose of copying or modifying the software, or sometimes controlling the use of the source code.

As the open source software is freely available for to use, a user can obtain the software from multiple third party sources under the open source license. Further, the user can modify the software to distribute or sell the software for profit. In the process, if the user modifies the software to attain certain functionality in an application, then the open source license does not stop the user from obtaining patent protection on inventive aspects of his modification to the software. However, the uses to which patent rights can be put are reduced when software embodying the patented technology is distributed under the open source license.

Now that I mentioned patent rights are reduced, one may ask that a patent owner has the right to exclude others from making, using and selling his patented invention. That is true, but not when the patents are obtained for the inventions on open source software. This is because; the open source license such as Mozilla Public License, GNU General Public License (GPL), and the like forbids imposing any restriction whatsoever on the rights granted by the license to the recipients of the software. Therefore, the patent owner who distributes a software incorporating his patent can no longer assert that patent against people who distribute that package further or incorporate the package in their own product. In other words, the rights obtained from open source license restricts the patent owner to assert the patent rights later on. This means that a competitor will have freedom to incorporate that package in his own product without having to pay any royalty to the patent owner. Please keep in mind that the part of the package in the product will have to be made available under the open source license.

Having said that, the follow-up question would be- why would anyone want to obtain a patent on an invention that is going to be distributed under the open source license? Actually, there are many reasons to do so. I will list down couple of them.

First, the patent owner wishes to license the patent to others to produce a revenue stream.

Second, the patent owner wishes to assert his patent rights against redistributors who do not conform to the open source license terms.

Third, the patent owner wishes to use the patent rights as an offensive or defensive weapon against infringers who are not using the open source license. For instance, the patent owner can assert the patent rights against his competitor who sells a competing product that incorporates the invention using proprietary software.

Many companies have had the above reasons to patent open source software and further distribute them. For example, Sun and IBM have patented thousands of open source software patents, only to release them to the general public. Sun patented its open source software so that it could release the open source software under its own open source license.  IBM regularly patents its open source software to have patent rights to use as an offensive or defensive weapon against claims that it is infringing on someone else’s intellectual property rights. In recent times, Google is aggressively pursuing to patent many applications built on the Android platform and license them for free.

It should be apparent that an open source software user is clear of patent infringement claims from the (same) open source licensee. However, the chance that a particular open source software package infringes on a patent by a proprietary software owner is quite real. In such cases, the open source software user may utilize couple of options to protect themselves. First, the open source software user may defend himself from the allegations of patent infringement. Second, the open source software user may request the open source license community and use their pool of patents on the technology to defend themselves. If nothing works, the open source software user may have to take a patent license from the proprietary software owner.

Using open source software has various advantages and risks. Use of open source software reduces cost and development time, or avoids being dependent on a single source. In order to reduce the risks, the license conditions of all open source software should be carefully evaluated. Further, the open source software should be screened for patent risks before use and/or distribution.

Author, Chandrasekhar is Manager and Patent Agent at IP Astra

Patent Licensing

patent-license-agreement-stock-image-720x340

Patent licensing is the right given to others to use one’s patented invention for profit. A patent gives a patentee the right to exclude others from using, making, selling, offering to sale or importing of the invention in specific jurisdiction. Patent licensing from an inventor’s point of view is making use of his invention for monetary purpose.

Licensing a patent for using it in interested party’s products for business exists from several years. Patent licensing takes place in scenarios where the licensee believes that licensing a patented technology from the patentee will reduce the research and development cost of the organization instead of developing similar technology investing heavily on R&D. Other scenario includes where the patentee identifies potential licensee and offers willful license in which the licensee can utilize the patented invention to implement the patented technology in their product(s). Patent licensing may otherwise take place in order to avoid infringement law suit.

Patent licensing may be exclusive or non-exclusive. The type of licensing will be dependent on the terms and conditions up on which the patentee and licensee agrees during the negotiations of the license terms. Exclusive patent licensing may take place between patentee and licensee wherein only the licensee can use the patented invention with the terms agreed upon during negotiations. Non-exclusive patent licensing may include licensing the patented invention to multiple licensees under different terms and conditions between patentee and each of the licensee. Other aspect in patent licensing includes cross license agreements in which both parties license each other patented technology in order to use the patented inventions in respective products and to minimize the licensing costs.

Choosing which patent to license and to which party to license may depend on the available technologies or value which the patent can generate when implemented. The patentee should decide on what type of licensing deal he should agree with the licensee. The patentee shall decide whether to assign all the rights to licensee (selling of patent), provide exclusive license or consider multiple non-exclusive licenses to several licensees depending on patent’s level of invention.

Major corporations such as Qualcomm, Intel, IBM, Microsoft, Nokia, Motorola, Ericsson has huge patent portfolios in various technologies. IBM earned more than $3 billion over the years by licensing patents to different companies. Qualcomm, market leader in telecommunication licensed its patented inventions to large number of corporations in telecom industry. Latest patent licensing agreements include Microsoft signing patent license agreement with almost all of smartphone manufacturers which use Android operating system.

Another aspect of patent licensing is the drawbacks in certain situations where the patentee may get less in royalties by licensing the patented invention considering the resources utilized in developing the invention due to poor licensing strategies used during the time of license agreement. In another scenario patent licensing may cost more to licensee where the patented invention becomes obsolete after years of licensing and the licensee may have to pay royalties if the terms are agreed for longer duration than required.

Patent licensing should be considered in the cases where the technology is available rather than reinventing the available technology by spending huge on R&D. Cross-licensing would help the interested parties in developing products by utilizing respective technology. The value of the patent shall be calculated depending on the impact, the patented invention brings when implemented in the product. Alternate technologies and future implementation of patented invention should be evaluated before signing license agreement.

Author, Chandrasekhar is Manager and Patent Agent at IP Astra

Protection of Architectural Works

“Architecture is not based on concrete and steel and the elements of the soil. It’s based on wonder.”  Daniel Libeskind

Recently, a few friends and I were having an interesting discussion the changing skylines of several countries – how things were, are and were likely to be. The talking point of the discussion was the novelty and ingenuity of architectural design unique to certain countries. For instance, the ancient pyramids of Egypt, the imperial palaces of the Ming dynasty, the architectural genius of Charles Correa whose modern designs are an integral part of India’s architectural history – all the design and its three dimensional interpretations were works of art. The imagination, time, effort, and resources required by architects in all these cases are astounding. Now, all this admiration made us wonder whether architects could protect their “works of art” from infringement, or from “copycats”? We delved into details to understand the law. After delving the details, the answer, hands down is a big yes. With this post, we thought to throw some light on how the structure of an architectural design can be protected.

As we all are aware, different countries have different laws. Generally, copyrights and trademarks are registered for safeguarding the interests of the architect/designer. These laws acknowledge the significant time, effort and money spent by architects. This article provides a general and basic idea of the laws enacted in the United States of America and India for the protection of artistic works of art.

For the sake of general understanding, an “architectural work” is a design exemplified in any tangible medium of expression, including a building, architectural plans, or drawings. Architectural works in the material form such as buildings are perceived as cultural symbols, functional spaces and as works of art. Like anything in its nascent stage, the protection of architectural works is an issue that has not been understood and discussed enough. A large number of architects or designers are unaware of how to protect their building designs. The procedure of protecting works of art in the United States of America is different from the procedure followed in India.

So, how does Uncle Sam protect the designs or architectural works of architects? Basically, architects in the US protect their designs and the 3D manifestation of the design by registering the respective as copyrights. In the year 1909, the US congress enacted The Copyright Act of 1909. The 1909 act did not specifically mention architectural drawings or construction drawings, but copyright protection for “drawings or plastic works of a scientific or technical nature” was included. With the language, the Federal Court assumed that it meant architectural blueprint. Later, in 1976 the US Congress felt the need to specifically include architectural plans and drawings. The act is commonly referred to as the 1976 Act. However, the courts held that even the 1976 Act failed to protect the architectures right to build structures as depicted in the drawings.

In 1989, amidst all this confusion regarding protection of architectural works, the US joined the Berne convention for the Protection of Literary and Artistic Works. The Berne convention requires that its signatories provide the required protection for original architectural designs. At this point, the US congress sensed the urgency for a law that provides complete protection of architectural works, in both plans as well as 3D manifestation. On December 1, 1990, President George H.W. Bush signed the Architectural Works Copyright Protection Act (AWCPA) into law. According to the AWCPA, the list of copyrightable subject matter was extended to include architectural works under 17 U.S.C. § 102. The act provided a 2 tier level of protection for architects. Under 17 U.S.C. § 102(a)(5), the architect is able to protect the pictorial, graphic, and sculptural works. And under 17 U.S.C. § 102(a)(8), the architect is able to protect the design of the architectural work as embodied in the architectural plans.

In order to receive copyright protection of the architectural work, the architect should be able to comply with the requirements of “originality” despite the fact that the fundamental elements of architectural design exist in the public domain. Now, in case of copyright infringement, the district court conducts a two part test. The first part of the test takes account of the validity of the copyright at issue. Certificate of registration of the copyright is the prima facie evidence of the validity of the copyright in question. An unsaid yet understood rule is that the architectural work must exhibit creativity to be protected under AWCPA. The second part of the two part test is evaluating the copyright under a “substantial similarity” analysis. Based on the evaluation, the examiner has to evaluate whether the alleged infringer has access to the original architect’s work.

The United States also allows architects to register architectural works as trademarks under the Lanham Act. According to § 1301.02(c), “The three dimensional configuration of a building is registerable as service mark only if it is used in such a way that it is or could perceived as a mark”. On most occasions, a photograph is a proper specimen of use for a three dimensional mark. However, photographs of a building fails in showing use of the architectural design as a mark for services performed in the building by only showing the architectural structure in which the services are performed.  The specimen must show that the proposed mark is used in a way that would be perceived as a mark.

While this is how it works in America, India is a different case. Indian law provides protection to the architectural works under the uniform copyright law. The copyright law in India is governed by the Copyright Act of 1957 amended in 2012, and the Copyright Rules, 2013. The section 13 of the Copyright Act, 1957 enumerates original, literary, dramatic, musical, and artistic work, cinematographic films and sound recordings as eligible for copyright protection. The section 13 of the Copyright Act, 1957 states that, “In the case of work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to process or methods of construction”.

Another significant point is that India is a signatory of the Berne’s convention of 1886, as well as the Universal Copyright Convention of 1951. By signing the conventions, an artist gets  protection for the architectural works (or for the matter of fact any literary and other artistic works) registered in other member countries to accord protection in India and vice versa.

To conclude, governments around the world are ready to recognize and protect artistic works. Failure to take steps in securing artistic works under intellectual property available in the respective countries would leave the architect with no legal remedy to claim his/her right over the architectural design or structure. In this highly competitive and frenetic world, ignorance is not ever going to be considered bliss.

The author, Perzeus Abhas, is a Patent Engineer at IP Astra

Self-driving cars- Would they be safe?

In 1964, Isaac Asimov wrote an essay in the New York Times expatiating his predictions for the year 2014. Although he did make a few duds, – he had predicted that we would have lunar colonies by now- one of the most accurate predictions he had made in the essay is summarized in the following excerpt:

“Much effort will be put into the designing of vehicles with ‘robot-brains’—vehicles that can be set for particular destinations and that will then proceed there without interference by the slow reflexes of a human driver.”

Yes, the author, well known for his clairvoyance, had predicted our endeavour to build the self-driving cars – the one technology that is apparently Google’s solution for Utopia.

The recent years have seen companies like Google, Nissan, and Daimler Chrysler hiring the best minds in the market for building the first perfect, fully autonomous car. Admittedly, they have made some rapid strides too. Nissan has become gutsy enough to announce that it will get in the autonomous car business by 2020. Google has unveiled an adorable cutie pie of a car that doesn’t have a steering, brake pedals or anything that allows a user to control it, save for an emergency stop button. Just two months ago, Daimler Chrysler unveiled an 18 wheeled autonomous truck, and yes, we are talking about a 27 tonne monster that knows where it wants to go in life, or rather, on the road.

In fact, the technology behind self-driving car technology is advancing at such a rapid manner, that in recent months, the internet has become an arena for countless debates on a new subject: consequences of using self-driving cars. There are articles that discuss the redundancy of an insurance claim if you are using a self-driving car. There are countless others that merge the classic “Trolley problem” with the basics of automated decision making used in cars. In a gist, all these articles ask the same questions: what if self-driving cars, intentionally or unintentionally kill someone or destroy property? Are they a safer alternative to manual driving? Would people be able to hack into car systems wirelessly or may be, kill someone?

Let’s put these questions to ourselves. Given that the self-driving cars does become a reality, will it reduce the mistakes made by humans? Or will the self-driving cars lead to risks that we have not heard of. To answer the questions, one would counter that with a question- Don’t manual drivers make mistakes? Don’t they cause accidents?” Nevertheless, at least the self-driving cars can be tried and they can be programmed to avoid risks leading to better safety of passengers.

One might say that there is a point in using self driven cars if there is a drastic increase in statistics showing the automobile safety. But if the statistics, though it is a barefaced liar, has a different story to tell, then there is absolutely no point in using self-driven cars. Most people feel safe when they themselves are in control- not when the reins are with some fabricated chip. The only time when they feel safe is when they have statistical evidence. So the only question that makes sense is, “are self-driven cars statistically safer than human drivers?”

The sad truth is that statistical evidence would take time, because; there are only a very few autonomous cars are on the road today. However, Google says it has better statistics with their autonomous cars. Google has been working on autonomous cars since 2009 with more than 30 autonomous cars put on trial. The autonomous cars are tested in cities across the US and clocked more than 1 million miles. According to Google, the autonomous cars have had a total of 11 minor accidents as of today. Incidentally, Google claims that those accidents weren’t caused by the autonomous cars, but by its fellow motorists.

So, going by the above facts, one might say that the answer to the question “Are autonomous cars safe?”, is not so surprisingly, a reasonable “yes”. Autonomous cars are safe because they are not bound by emotions. They do not exhibit road rage. They do not use anything but cold, computational logic to make decisions. They are not distracted. And most importantly, they do not disobey traffic rules. Though all the above aspects do contribute to the added safety of the autonomous cars, perhaps the factor that contributes most to it could be that autonomous cars are well connected.

Autonomous cars are connected to a centralized system that supplies provides information about pretty much everything that is happening/ or possible to happen in the vicinity of their path. Much like Griffin, a character from the movie ‘Men in Black 3’. Though they are not “interdimensional beings capable of living in multiple dimensions at a same time”, they do have an extensive knowledge about all the possible outcomes that could occur in the route they take. So, they could potentially anticipate accidents before they happen and take the necessary measures to avoid the same.

The autonomous cars follow a modular design in which multiple autonomous cars are connected when they are in proximity. Each car is capable of making its own decisions and when an autonomous car in the vicinity goes haywire, the remaining autonomous cars coordinate with one another to bring the situation under control. Cool, isn’t it? In this way, the  autonomous cars would be able to efficiently reduce the number of accident cases and foster safety on roads.

Now that we are in the era of autonomous transportation that would inevitably infiltrate our daily life in the coming decade, the last question that would still linger in our minds, that one inconvenient question or fear would be “What would happen if the autonomous cars are hacked by someone?”. But since those risks are ever present in our tech savvy society we would ignore it. We might at the most, try to build a secure firewall or adaptive encryption, or high security codes. But no wall is impregnable. Every wall has a crack that can be breached. One day, someone would find that crack. Having said that, the designers of these cars will have to build failsafe cars and regularly provide software upgrades to improve the safety of passengers and also to other road users. With that, let’s hope to see these cars on road as soon as possible.

Leo Paul Johnson is a senior Patent Engineer in IP Astra

An insight to application developers on protecting their innovation

With increase in use of mobile devices in our day-to-day life, the innovation has shifted from personal computing to mobile computing. Particularly, the innovation is striving in developing applications running on mobile devices on the go. With the focus shifting to gain commercial success in developing mobile applications, lot of application developers are puzzled if the mobile applications can be protected from someone copying the applications when they publish or market the applications. With this post, we will throw some light on how mobile application developers can protect their innovation before the mobile applications are made public.

When we speak of mobile applications, two marketplaces come to our mind: Apple’s Appstore and Google’s Playstore (Who uses Microsoft and Blackberry stores anyway?). If we look at the applications on the Apple’s Appstore and the Google’s Playstore, the applications are nothing but software. There is a general perception that software is difficult to protect and let us assure you that software can be protected by means of patent and of course by copyright. In this post, we lay our focus on protecting mobile applications by patenting.

Typically, the mobile applications are categorized into two types. First, the applications that control the mobile device itself. Second, the applications that connect to a remote server to process data. For example, an application that can be used to control hardware of the mobile device, such as camera in the mobile device is patent eligible. Similarly, an application running on a mobile device that connects to a remote server containing data that either stores the data or process the data to be used on the mobile device is patent eligible. Let me explain to further clarify the above aspects. As known, many mobile applications that connect to the server processes the data at the server level and the data is sent to the mobile device. For example, a music recognition app records a segment of music and sends the audio clip to a server for processing-intensive analysis and recognition. The server then sends back information to the mobile device. For instance, the server may send the name and description of the identified music track, along with links to purchase or share the track. In the above example, the mobile application is making the mobile device to function in a certain way. For patenting the application, the functionality achieved using the application will be considered. The software code as-is, that achieves the function is not eligible for patent. The software code as-is can be protected under copyright (again, not getting into details).

It is important to understand the patentability criteria which are essential to ascertain whether a patent can be filed for the invention (mobile application). Generally, the patent offices across the globe have specific criteria for respective jurisdictions to determine patent eligibility for mobile applications. To grant a patent, the patent office of respective jurisdictions performs a search. The patent office performs the search to determine whether the mobile (patent) application has ever been patented, used or published before anywhere in the world. Further, the patent office checks whether the mobile application solves a particular problem in a technical field and produces a useful, concrete and tangible result. After determining that the mobile application submitted is not disclosed or used anywhere in the world, solves a particular problem in the technical field and has commercial application/ utility, the patent office will grant a patent for the mobile application.

The application developers should know that there is no worldwide patent and they have to file the patent application in each country of choice, depending on the market for the mobile application. As known, success of mobile applications depend on which markets one caters to. For example, if the developer in US wishes to publish the mobile application in Appstore of Europe and Japan, it is appropriate for the developer to file a patent application in US, Europe and Japan. In such a scenario, the developer should consider filing a provisional patent application in US, and wait for a year to see how the mobile application is performing in other markets. After analysing the performance of the mobile application in other markets, the developer may take priority from US patent application and can file patent application in other jurisdictions. If otherwise the developer is sure to file in multiple jurisdictions considering the mobile application to be a breakthrough innovation or for obvious business outcomes, the developer can file non-provisional patent application to protect the innovation.

It is important to know that patenting the mobile applications provide the greatest commercial benefit if expected lifespan of the technology substantially exceeds over the years. Further, patenting is beneficial if the technology of the mobile application is of great interest, appeal or application and if there is a scope for competitors to use the technology in their own applications. The developer must take care before filing a patent application for the technology which underlies a mobile application, in both the mobile device and the remote server. Also, the business outcome expected from the mobile application should be analysed in the long run. Filing patents in multiple jurisdictions will cost a lot of money for the developers. However, what if the developer just invented the next blockbuster? Therefore, developers should consider filing patents for their innovations to showcase their innovation and to protect themselves from competition.

Author, Chandrasekhar Raju, is Manager and Patent Agent at IP Astra

Microsoft Loses Battle for Trademark “Skype” in the EU

Choosing the right trademark for your brand is not as simple as picking a name that you believe no one else is using. The criteria for you to own trademark rights is that your mark not only be unique but also not confusingly similar to another’s mark. The wording used here is “similar” and not “identical” and that is where most trademark owners lose their trademark rights. This means that if the name you choose to represent your brand is so similar to another’s trademark that it would be likely to confuse the general public, then you may not have the right to that trademark.

Microsoft “Skype” is in exactly such trouble. BBC on the 5th of May has reported that the general court of the European Union has ruled that the name “Skype” is so similar to British broadcaster “Sky” that the public would be likely to confuse the two. Whether or not the general public is in fact going to confuse “Skype” with “Sky” is not the issue. The court feels that there is the “likelihood” of it and hence ruled in favor of “Sky”.

The Court further rejected the Bubble logo that is associated with “Skype” on the grounds that it resembled clouds and thereby a further association with “Sky”. The Court stated, “Conceptually, the figurative element conveys no concept, except perhaps that of a cloud…[That] would further increase the likelihood of the element ‘Sky’ being recognized within the word element ‘Skype’, for clouds are to be found ‘in the sky’ and thus may readily be associated with the word ‘sky’.”

Sky has made an official statement “Our intention has been to protect the Sky brand with our research showing that similarities in name and logo have the potential to confuse customers.”

In 2014, Microsoft faced a similar battle with Sky which resulted in them having to change their trademark for their cloud storage service from Skydrive to Onedrive. The company will appeal the Skype decision but remains to be seen if they will be forced to rebrand this trademark as well for the EU and retain it elsewhere.  However, a spokesperson from Microsoft informed BBC that “The case was not a legal challenge to Skype’s use of the mark, it was only against the registration”… And that they are “confident that no confusion exists between these brands and services and will appeal” and that “this decision does not require us to alter product names in any way.”

That being said, the verdict of the EU court opens up the possibility of Sky permitting Microsoft to continue to use the trademark under a license. But, Microsoft is only likely to make that decision after the appeal process is completed.

Author Lynn Bout Lazaro is an IP counsel

Parallel Imports & Trademarks

The fake goods and counterfeit market in India has been growing substantially in the last few years. India’s luxury market currently is at $8billion out of which 5% is fake or counterfeit. (http://trak.in/tags/business/2014/04/21/counterfeit-luxury-goods-sold-ecommerce-india/). In March of this year, the Mumbai Mirror reported that an authorised snap deal vendor was selling fake toners and cartridges. (http://www.mumbaimirror.com/mumbai/crime/Authorised-Snapdeal-vendor-caught-selling-fake-toners-cartridges/articleshow/46720290.cms). The Indian courts have come down heavily on such counterfeit distribution. However, the story is quite different for parallel imports or genuine products resold without the owner’s authority.

The controversy surrounding parallel imports and its effect on trademarks has been debated in the Courts for several years. Parallel imports occurs due to differential pricing of the same goods in the same or different markets. Essentially, when patented and/or trademarked goods are marketed and sold in a country with lower prices, be it due to competition, lower manufacturing costs, smaller economy or other market conditions, but then resold in a richer country at the same lower cost, it would be considered a parallel import.

For example, if a pharmaceutical company in the U.S were to sell drugs in Africa at low rates, anyone could import such drugs from Africa at these marginalised rates without the consent of the original pharmaceutical company. This would therefore undercut the profits of such pharmaceutical company.

When such import occurs without the consent of the trademark owner, it is essentially creating a trade channel that is parallel to the authorised channel of the trademark owner. As these goods operate in a non authorised area, such goods are considered to be in the “grey” market.

The TRIPS Agreement refuses to regulate this matter and permits nations to decide the law domestically.

India is said to follow what is called an “international exhaustion regime” wherein if the goods are purchased in accordance with all the laws of the country of India, the purchase is deemed valid, and the sale would not infringe the registered trademark. Kapil Wadhwa v Samsung (2012) was the landmark judgment wherein first the Delhi High Court held that if the goods bore a similar trademark to that of a registered trademark, whether the goods were genuine or not, it would be considered infringing, but later a Division Bench on appeal overruled this decision and held that parallel imports were not considered to be violative of trademark rights.

Section 30 (3) of the Indian Trademark Act was interpreted  by the Division Bench to mean that once goods bearing a registered trademark have legally entered the market i.e with the consent of the trademark owner, the subsequent sale of such goods does not lead to infringement. The Division Bench further explained that the proprietor of the trademark could oppose the subsequent sale of goods under its trademark, only if the goods were materially or physically altered so that it would change the nature of the goods. The Court did however order that the parallel importers must prominently state that the goods that are imported and they themselves are providing the warranty and maintenance services as opposed to the trademark owners.

The Government of India has prohibited parallel imports in other ways by enforcing the Intellectual Property Rights (Imported Goods) Enforcement Rule 2007 (the Rules‟) vide Notification No. 47/2007-Cus. (N.T.) dated 8 May 2007.  The proprietor of the trademark under these rules is permitted to give Customs a notification in the prescribed format requesting suspension and confiscation of infringing goods. The burden of proof shall fall on the proprietor in such a case.

But there is little or no remedy available under the Trademark Act and it would be interesting to see how the Supreme Court interprets Section 30(3) when the Samsung case comes before it in appeal. In the meantime, the only legal course available to a trademark owner in such circumstances is if the parallel importer compromises the reputation or goodwill of the trademark.

Author Lynn Bout Lazaro is an IP counsel

ANALYSIS OF AMENDMENTS IN IEEE PATENT POLICY

Standard Setting Organizations (SSO) are organizations for developing, coordinating, promulgating, revising, amending, reissuing and interpreting standards or, in simpler terms, developing global standards for a broad range of industries. There is a large number of SSOs that are quite active at present. Prominent among these SSOs is the Institute of Electrical and Electronics Engineers (IEEE). ASME, the ASTM international and the W3C are the other key players in this arena. Members of the SSOs hold Standard Essential Patents (SEP) for implementing the standards developed in a technology. These members tend to license the SEPs to different organizations or companies on the basis of a policy that is Fair, Reasonable and Non-Discriminatory (FRAND) for gaining monetary benefits and royalties. But of late the SSOs and the standards developed by them have taken the center stage during litigation procedures between corporate powerhouses. Some of the cases worth mentioning would be the Microsoft versus Motorola, the Apple versus Motorola, the Ericsson versus D-Link etc. In all these cases the IEEE Wi-Fi standard has played a prominent role. As a matter of fact, the FRAND commitments are cited 10 times more often now than it was being cited 10 years back.

IPR experts and observers have long been pushing for a clarification from the SSOs on the issue of their patent policy. And finally, on February 8th   2015 the board of directors of the Institute of Electrical and Electronics Engineers (IEEE) voted to approve a set of amendments to the organization’s patent policy. The IEEE provides a link here to the current draft of the proposed IPR policy. On a first time read, many would find the IEEE policy change contrary to the US law for determining royalty rates and providing injunctive relief for SEPs. Some of the key points of the IEEE amendments are:

  • The compensation for the usage of an essential patent claim is considered based on the value of the relevant functionality of the Smallest Saleable Compliant Implementation that practices the essential patent claim.
  • The submitter will make available a license for Essential Patent Claims to an unrestricted number of applicants on a worldwide basis without compensation or under reasonable rates, with other reasonable terms and conditions that are demonstrably free of any unfair discrimination.
  • The submitter of an accepted Letter of Assurance who has committed to make available a license for one or more essential patent claims agrees that it shall neither seek nor seek to enforce a Prohibitive order based on Essential Patent Claims in a jurisdiction.
  • Reciprocal licensing shall mean that the submitter of an LOA has conditioned its granting of a license for its Essential Patent Claims upon the Applicant’s agreement to grant a license to the submitter with reasonable rates and other reasonable licensing terms and conditions.

The amendments to the IEEE patent policy point out the fact that SEP holders are not allowed to seek injunctions against licensees. Further, by asking to consider the value of the smallest salable unit, the IEEE patent policy amendments considerably reduces the royalty value the Standard Essential Patent holders were to receive in return for their SEP(s). A setback, which is more than likely to happen, will be an increase in litigation cases. Why term it a setback? Because the real deal was to reduce litigations. At the end of the day, it is a field day for licensees, as they don’t face the threat of an injunction. And disappointing for the SEP holder, as the SEP’s monetary value is decreasing.

A point worth mentioning would be that denying access of SEPs to firms dampens any chance whatsoever the firm has for competing in a market where consumers are more often attracted to products that are standardized. Also, regulating the access of SEPs to firms by a third party would tend to reduce the quality of standards in times to come. Similar was the expectation from the IEEE patent policy amendment of 2007 when nearly all the foremost IPR experts had predicted the amendments to be a complete disaster. But nothing of that sort happened. And when we look at the present amendments, of course there are short comings but at least the IEEE has given a much awaited and needed clarification on the FRAND policy it implements.

 Perzeus Abhas is a Patent Engineer at IP Astra